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Documents and the Privilege Against Self-Incrimination (From Criminal Law Review, P 177-231, 1988, James G Carr, ed. -- See NCJ-114710)

NCJ Number
S A Alito
Date Published
55 pages
In Fisher vs. the United States and in United States vs. Doe, the U.S. Supreme Court reversed its 1886 position that the fifth amendment privilege against self-incrimination applies to compulsory process for documents.
These decisions suggest that the contents of voluntarily prepared private documents are never privileged, but that the testimonial components of the act of preparing the document may be privileged and that act-of-production immunity may have to be granted to enforce a subpoena for personal records. Under this approach, the fifth amendment does not protect the contents of any individual business or personal records. When act-of-production immunity is granted after issuance of a subpoena for individual records, the testimonial components cannot be used against the individual when applying for a subpoena. Such a grant of immunity could cause great and unforseen taint problems in some situations. Though governed by different rules than process for individual records, institutional records also could be affected. To minimize act-of-production problems, subpoenas must be directed to the unprotected artificial entity and not to any particular individual. The approach also could affect the required-records doctrine of Shapiro vs. United States, which holds that the fifth amendment privilege does not apply to records kept under Government regulations. Under the new approach, an individual should be allowed to make a contemporaneous objection to the compulsory creation or organization of documents pursuant to a regulatory provision. If no objection is made, however, the fifth amendment will not protect the contents of the records if they are subsequently subpoenaed. The approach taken in Fisher and Doe creates a great deal of uncertainty, particularly with respect to the act-of-production theory, which is highly abstract and does not take into account the realities of subpoena practice. 238 footnotes (Author abstract modified)